Steptoe & Johnson

The West Virginia Fairness In Competitive Bidding Act (the “Act”) found in Chapter 5 Article 22 of the WV Code details certain requirements that must be adhered to with respect to the solicitation and selection of contractors for certain public improvements. 

The bid solicitation must be written, designate a time and place for bid opening and the actual bid opening may not be a US Postal Service holiday.  The bids must be read aloud and open for public inspection.  While the Act details the minimum requirements, the owner may and usually does have additional requirements. 

Contracts shall be awarded to the “Lowest Qualified Bidder” defined as:

• The contractor who certifies he or she is ready able and willing to timely furnish labor and materials to complete the contract
• The contractor who supplies a valid bid bond 
• The contractor in compliance with “all applicable State laws”

There are several state laws which may apply to any particular project such as the WV Contractor Licensing Act, the WV Alcohol and Drug Free Workplace Act; and the WV Jobs Act to name a few.  Whether a particular Code section applies is dependent on many factors such as the size of the contract; the type of financing utilized for the project; and the type of owner of the project. 

It is important to understand all the requirements as several Code sections conflict and the owner would need to comply with the most restrictive.  An example is that the Act requires competitive bidding on all contracts over $25,000; however, if the owner is a sanitary board the limit is $10,000 and the limit for a public service district is $15,000.  There may also be requirements that are not statutory but required by the agency providing the financing.  For example, the Infrastructure Council has developed Uniform Bidding Procedures for water and sewer projects which have additional requirements beyond those dictated by the Act.  The Act has several conditions that must be met in order to reject an erroneous bid, all of which are fairly vague and relatively broad in interpretation.  Therefore, since the Act states that any requirement stated in the advertisement for bids, or on the bid form, may not be waived, the actual bid solicitation needs to be as clear as possible to avoid potential bid protests.

If you have questions about this alert, contact Katy Mallory.  For any other construction law inquiries, please contact a member of the Steptoe & Johnson Construction Law Team.